Every so often a case comes along that fundamentally alters one’s approach to regulation. Siadat v. Ontario College of Teachers, 2007 CanLII 253 (ON S.C.D.C.) is probably such a case. As a result, many regulators will probably think of their registration requirements (and their human rights obligations) differently.

Ms. Siadat is a teacher from Iran. She wanted to become a teacher in Ontario. The College of Teachers required satisfactory evidence of her teacher education, experience and good standing. Normally this evidence is required to be provided through the institutions providing the documents directly to the College (although, in exceptional circumstances the College will accept copies and try to verify them).

The problem was that Ms. Siadat could not provide the original documents nor would she authorize the College to verify them. As the court said,

When teaching literature classes at the High School level, she made comments about the right of authors to freedom of expression. This resulted in harassment of her by the governing regime, particularly the Ministry of Education, leading to loss of her employment, and threats to her life. She fled Iran in advance of a “political trial” and was accepted as a Convention refugee in Canada….

Her problem is that the originals of her University Degree, her transcript from the University and the equivalent of her Teacher’s certification in Iran are all held by the Ministry of Education there, which is, in effect her prosecutor as a political dissident, for which she fled the country. In her view, supported by some other evidence, not only would Iran not respond to requests to provide the originals or certified copies, but might well, if it receives such request, respond by searching out and harming members of Ms. Siadat’s family still in Iran.

Ms. Siadat’s position was that the College’s requirement for original documentation directly from institutions (which was not expressly required in the regulation – although it is doubtful that the decision was affected by this detail) had a discriminatory effect on her. While the requirement applied to everyone, because of Ms. Siadat’s place of origin, the impact was disproportionate. She argued that the Registration Committee’s brief reasons to the effect that she did not meet the registration requirements failed to address her real issues or to accommodate her unique situation.

The court agreed. It said:

It is plain and obvious to me that to insist on original, or government certified documents from her place of origin, is prima facie discriminatory against her, in view of the evidence she has provided. It is no answer for the Committee, or the College Registrar to say that 17,414 other applicants had succeeded in providing these documents, and she is the first one who cannot….

The Ontario Human Rights Code takes precedence over other, inconsistent law. Where there is apparent discrimination, the onus shifts to the regulator to demonstrate that it could not accommodate the individual without undue hardship. Undue hardship can take the form of impossibility, serious risk or excessive cost. The accommodation requested here was an individualized assessment of Ms. Siadat’s qualifications as a substitute for the unavailable original documents.

Some of the alternative methods of evaluation discussed in the case included the following:

1.      examination and cross-examination of Ms. Siadat before the Committee;

2.      review of Ms. Siadat’s documents, and perhaps an interview with her by persons knowledgeable of the educational system in Iran (perhaps some or all of the 12 Iranians now, per the College, licensed as teachers in Ontario); or

3.      independent proficiency testing as authorized by the B.C. College of Education.

The court also expressed concerns that the reasons of the Registration Committee did not address the issue of whether Ms. Siadat’s circumstances could be addressed by an individualized assessment process.

Some of the significant aspects of this case include the following:

1.      Country of education was, at least in this case, deemed equivalent to place of origin. That connection had not been made in a number of previous decisions on related issues.

2.      A registration requirement, even one that is valid for most purposes, is subject to scrutiny on the basis that it has a discriminatory effect on some applicants. Where it does, the regulator has a duty to accommodate (likely through an individualized assessment process).

3.      Where a regulation requirement creates a discriminatory effect, the onus shifts to the regulator to justify its proposed accommodation process.

4.      It is not enough for a regulator to simply say in its reasons that a registration requirement has not been met. It must look to the purpose of the requirement and whether the person meets the substance, if not the letter, of the requirement. (There may be some exceptions in non-human rights cases where the requirement is expressly made non-exemptible.)

The significance of this case should not be overstated, however, for the following reasons:

1.      The court did not require that the College register Ms. Siadat. It did not even specify which accommodation mechanism should be used. It simply returned the matter for the College to reconsider on appropriate principles.

2.      Not every assertion that a registration requirement is discriminatory will result in a need to accommodate. The applicant must establish, on evidence, the basis of the assertion.

3.      The court placed a lot of weight on the nature of the reasons of the Registration Committee. A different outcome might have occurred if the reasons effectively addressed the human rights concern.

4.      There was no suggestion in the case that an applicant did not need to meet the substantive requirements for registration. Rather, the emphasis was on devising alternative methods for the applicant to demonstrate the substantive requirements.

The challenge for regulators is distilling what is a substantive requirement and distinguishing those from the various means or forms for demonstrating those essential competencies.

A copy of Siadat can be found at:

www.canlii.org/on/cas/onscdc/2007/2007onscdc10001.html

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